1. Interpretation of a statute is a question of law over which an appellate court's review is
unlimited.

2. Any analysis of a statute must start with the language of the statute itself.

3. Juvenile adjudications are not to be considered in the determination of persistent sex
offender status under K.S.A. 21-4704(j).

Review of the judgment of the Court of Appeals in 40 Kan. App. 2d 318, 191 P.3d 357
(2008). Appeal
from the Sedgwick district court; TERRY L. PULLMAN, judge. Judgment of the Court of
Appeals reversing the
district court is affirmed. Judgment of the district court is reversed, sentences are vacated, and
case is remanded
with directions. Opinion filed June 19, 2009.

Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was
on the brief for the
appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and
Nola Tedesco Foulston, district
attorney, and Paul J. Morrison, attorney general, were with her on the brief for the
appellee.

The opinion of the court was delivered by

ROSEN, J.: The State seeks review of a published opinion of the Court of Appeals in
State v. Boyer, 40 Kan. App. 2d 318, 191 P.3d 357 (2008), holding that a prior
juvenile
adjudication for a sex crime could not be the basis for sentencing the defendant as a persistent sex
offender under K.S.A. 21-4704(j). A separate panel of the Court of Appeals held in State v.
Swisher,No. 94,705, unpublished opinion filed April 6, 2007, rev. denied
284 Kan. 951 (2007),
that a prior juvenile adjudication could be the basis of a persistent sex offender finding. This court
granted the State's petition for review in order to resolve the conflict.

The relevant facts of this case were set out by the Court of Appeals' opinion this way:

"James Boyer was sentenced to 110 months in prison on his primary offense,
which was
double the sentence he would have received had he not been classified as a persistent sex
offender. That classification was based on a juvenile adjudication, not an adult conviction. If that
juvenile adjudication were not considered, Boyer would not have been classified as a persistent
sex offender, and his maximum sentence would have been 55 months on the primary offense.
Boyer, 40 Kan. App. 2d at 318.

This case requires the interpretation of K.S.A. 21-4704(j), which mandates doubling of the
maximum duration of imprisonment if an offender has "at least one [prior] conviction for a
sexually violent crime." K.S.A. 21-4704(j)(2). Specifically, the question is whether "conviction" in
this statute also means "juvenile adjudication" or only contemplates adult convictions.
Interpretation of a statute is a question of law over which this court's review is unlimited.
State v.
Thompson, 287 Kan. 238, 243, 200 P.3d 22 (2009).

At issue are two sentencing statutes; K.S.A. 21-4710, which determines the criminal
history score of an offender for purposes of sentencing under the Kansas Sentencing Guidelines
Act, and the persistent sex offender provisions of K.S.A. 21-4704(j). K.S.A. 21-4710 determines
an offender's criminal history score for purposes of determining the sentence provided by the
sentencing guidelines grid. The aggravated sentence provided by the grid is doubled under K.S.A.
21-4704(j)(2) for persistent sex offenders. The State maintains that the list of prior convictions in
K.S.A. 21-4710, which includes certain juvenile adjudications, should be used to interpret a "prior
conviction" for purposes of K.S.A. 21-4704. Boyer argues that if the legislature had intended
juvenile adjudications to count as prior convictions for K.S.A. 21-4704(j), it could and would
have clearly said so.

Any analysis of a statute must start with the language of the statute itself. The Court of
Appeals opinion accurately describes and quotes K.S.A. 21-4710:

"K.S.A. 21-4710(a) determines which convictions are included for determining a
defendant's criminal-history score, and that score determines the range of potential sentences for
a specific offense. Obviously, whether some past offense counts for this purpose is important. The
statute has specific references to both convictions and to juvenile adjudications, including a
specific reference to which juvenile adjudications will be counted:

"'(a) Criminal history categories contained in the sentencing
guidelines grid for nondrug crimes and the sentencing guidelines grid for drug
crimes are based on the following types of prior convictions: Person felony
adult convictions, nonperson felony adult convictions, person felony juvenile
adjudications, nonperson felony juvenile adjudications, person misdemeanor
adult convictions, nonperson class A misdemeanor adult convictions, person
misdemeanor juvenile adjudications, nonperson class A misdemeanor juvenile
adjudications, select class B nonperson misdemeanor adult convictions, select
class B nonperson misdemeanor juvenile adjudications and convictions and
adjudications for violations of municipal ordinances or county resolutions
which are comparable to any crime classified under the state law of Kansas as a
person misdemeanor, select nonperson class B misdemeanor or nonperson class
A misdemeanor. A prior conviction is any conviction, other than another count
in the current case which was brought in the same information or complaint or
which was joined for trial with other counts in the current case pursuant to
K.S.A. 22-3203 and amendments thereto, which occurred prior to sentencing in
the current case regardless of whether the offense that led to the prior
conviction occurred before or after the current offense or the conviction in the
current case.' [K.S.A. 21-4710(a).]

"(1) The sentence for any persistent sex offender whose current convicted crime
carries a
presumptive term of imprisonment shall be double the maximum duration of the presumptive
imprisonment term. The sentence for any persistent sex offender whose current conviction carries
a presumptive nonprison term shall be presumed imprisonment and shall be double the
maximum duration of the presumptive imprisonment term.

"(2) Except as otherwise provided in this subsection, as used in this subsection,
'persistent sex offender' means a person who: (A) (i) Has been convicted in this state of a sexually
violent crime, as defined in K.S.A. 22-3717 and amendments thereto; and (ii) at the time of the
conviction under paragraph (A) (i) has at least one conviction for a sexually violent crime, as
defined in K.S.A. 22-3717 and amendments thereto in this state or comparable felony under the
laws of another state, the federal government or a foreign government; or (B) (i) has been
convicted of rape, K.S.A. 21-3502, and amendments thereto; and (ii) at the time of the conviction
under paragraph (B) (i) has at least one conviction for rape in this state or comparable felony
under the laws of another state, the federal government or a foreign government.

"(3) Except as provided in paragraph (2)(B), the provisions of this subsection shall
not
apply to any person whose current convicted crime is a severity level 1 or 2 felony."

Both the crime of which Boyer was convicted in this case and the crime of which he was
previously adjudicated were sexually violent crimes, as defined in K.S.A. 22-3717.

Comparing and contrasting the two statutes, the Court of Appeals noted that K.S.A.
21-4704 refers only to convictions, while K.S.A. 21-4710 not only refers to both convictions and
juvenile adjudications, it also specifies which types of juvenile adjudications will be counted in
determining criminal history scores. The court stated:

"It seems significant that a persistent sex offender by definition must have 'at least one
conviction
for a sexually violent crime.' K.S.A. 21-4704(j)(2)(A)(ii). The juvenile system uses the term
adjudication, not conviction. One might argue that adjudications are equivalent to convictions
and, thus, the legislature's reference to convictions should be read broadly to include any
equivalent determinations.

"But that seems a weak inference when the legislature has so carefully
distinguished
between criminal convictions and juvenile adjudications in other statutes, such as K.S.A.
21-4710." 40 Kan. App. 2d at 321.

The Court of Appeals then carefully reviewed one prior case of this court, In re
W.H., 274
Kan. 813, 57 P.3d 1 (2002), and four of its own precedents, In re J.E.M., 20 Kan.
App. 2d 596,
890 P.2d 364 (1995); State v. Fischer, 22 Kan. App. 2d 568, 919 P.2d 368 (1996);
State v.
Crawford, 39 Kan. App. 2d 897, 185 P.3d 315 (2008); and State v. Sims, 40
Kan. App. 2d 119,
190 P.3d 271 (2008), concluding that "[i]n each of these cases, courts have noted the care with
which the statutes for both juvenile and adult proceedings have been written. In each of these
cases, courts have declined to infer statutory coverage of situations not explicitly covered." 40
Kan. App. 2d at 322.

In In re W.H., 274 Kan. 813, Syl. ¶ 3, this court examined the Kansas
Juvenile Justice
Code, including the absence in it of any reference to consecutive sentencing in juvenile cases, and
concluded that the legislature did not authorize the imposition of consecutive sentences in juvenile
cases. The court noted the comprehensive sentencing system set out by the Code including the
detailed placement matrix based upon the unique history of a juvenile's past and present offenses.
It also noted the express inclusion of consecutive sentencing authority in the Kansas Sentencing
Guidelines Act and concluded that had the legislature intended district courts to have the
authority to impose consecutive sentences in juvenile cases, it would have said so explicitly. 274
Kan. at 819-23.

The question in In re J.E.M., 20 Kan. App. 2d 596, closely resembles that of
this case.
J.E.M. appealed the district court's determination that his prior juvenile adjudications should be
counted as convictions for purposes of enhancing a misdemeanor theft to a felony conviction.
K.S.A. 1993 Supp. 21-3701 provided:

"Theft of property of the value of less than $500 is a class A nonperson misdemeanor,
except that
theft of property of the value of less than $500 is a severity level 9, nonperson felony if
committed by a person who has, within five years immediately preceding commission of the
crime, been convicted of theft two or more times." (Emphasis added.)

J.E.M. was adjudicated a juvenile offender for theft of property valued at less than $500,
which the court determined to be a severity level 9 nonperson felony based on two prior theft
adjudications. The Court of Appeals compared and contrasted the Juvenile Offenders Code and
the Kansas Sentencing Guidelines Act and concluded:

"By specifically including juvenile adjudications in the guidelines statutes relating to
criminal
history computations and not including similar language in K.S.A. 1993 Supp. 21-3701, the
legislature has demonstrated its intention that juvenile adjudications not be used to enhance the
severity of a theft conviction." 20 Kan. App. 2d at 600-01.

The effect of the persistent sex offender provision in K.S.A. 21-4704(j) is virtually the same
as the
effect of the provision in K.S.A. 1993 Supp. 21-3701 at issue in In re J.E.M.; it
serves to enhance
the severity of the covered sex offenses.

State v. Fischer, 22 Kan. App. 2d 568, looked at whether a juvenile probation
for a
juvenile adjudication that would have been a felony if the juvenile had been an adult is the same as
being on probation for a previous felony conviction. The Court of Appeals concluded that it was
not, based primarily on the reasoning set out in In re J.E.M.Fischer, 22
Kan. App. 2d at 570-71.

State v. Crawford, 39 Kan. App. 2d at 901-03, and State v. Sims,
40 Kan. App. 2d at 120-22, both review the three cases above and then reach the
conclusion that an adult sentence may
not be imposed consecutively to the sentence from a juvenile adjudication because K.S.A.
21-4603d(f) made no reference to juvenile adjudications at the time of the crimes in those cases.
(The
statute has since been amended; however, we note these cases reflect the law at the time of
sentencing in this case.)

In each of the cases cited by the Court of Appeal's decision in Boyer, the
court applied the
standard rules of statutory interpretation in reaching the conclusion that the legislature is well
aware of the distinction between juvenile adjudications and adult convictions. After reviewing
these cases, the Boyer court applied the same analysis to the statutes in this case:

"[G]eneral rules of statutory interpretation also support Boyer's argument. First, the plain
words
of the statute reference juvenile adjudications in the general provision for calculating
criminal-history scores but not in the specific provision determining who may be classified a
persistent sex offender. Specific statutes generally control over more general ones. In re
K.M.H.,
285 Kan. 53, 82, 169 P.3d 1025 (2007). Second, as the Kansas Supreme Court recognized in
In
re W.H., the expression of one thing in a statute generally implies the exclusion of others.
The
juvenile- and adult-sentencing statutes are interrelated and have been carefully crafted. Juvenile
adjudications are clearly referenced in several other adult sentencing statutes so we find the lack
of explicit reference to them in the statute defining persistent sex offenders significant. It is
unlikely that this omission was an accident. Third, under the rule of lenity, penal statutes are
narrowly construed in favor of the defendant. State v. Zeit, 39 Kan. App. 2d 364, Syl.
¶ 3, 180
P.3d 1068 (2008); In re J.E.M., 20 Kan. App. 2d at 600. To the extent that K.S.A.
21-4704(j) is
ambiguous about whether juvenile adjudications may be used to classify someone as a persistent
sex offender, we construe the statute in the defendant's favor . . . . It is within the legislature's
authority to say that juvenile adjudications may be used for this purpose. But such authority
should be clearly granted, not implied from ambiguous language." Boyer, 40 Kan.
App. 2d at
322-23.

Boyer also deals with this court's decision in State v. Allen, 283
Kan. 372, 153 P.3d 488
(2007). In Allen, the court considered whether the district court's finding that a
juvenile
adjudication of aggravated incest was a sexually motivated crime and, therefore, could be used as
the basis of a persistent sex offender sentence violated the protections of Apprendi v. New
Jersey,
530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271
Kan. 394, 23
P.3d 801 (2001). The issue arose because, at the time of Allen's conviction, aggravated incest was
not listed as a sexually violent crime in K.S.A. 2004 Supp. 22-3717(d)(2)(A) through (I) and so,
in turn, could not serve as the basis of a persistent sex offender sentence under K.S.A. 2004 Supp.
21-4704(j)(1) without the additional finding that it was a sexually motivated crime under K.S.A.
2004 Supp. 22-3717(d)(2)(L). Allen did not consider the issue whether a juvenile
adjudication, as
opposed to a conviction, for a sexually violent crime could serve as the basis of a persistent sex
offender finding. The Boyer court dismissed the State's argument based on
Allen by stating:
"There is no indication in Allen that the court considered--or the defendant
presented--the issue
raised here by Boyer." Boyer, 40 Kan. App. 2d at 323.

Finally, the Boyer opinion reviews the opinion of a separate panel of the
Court of Appeals
in State v. Swisher, No. 94,705, unpublished opinion filed April 6, 2007, rev.
denied 284 Kan. 951
(2007). That panel held that juvenile adjudications may serve as the basis for a persistent sex
offender sentence. Although Swisher did argue that a juvenile adjudication is not the same thing
as a conviction, the Swisher panel was primarily considering whether use of a juvenile
adjudication as a basis for a persistent sex offender sentence violated Apprendi.Swisher cited
State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002), cert denied 537 U.S.
1103 (2003) (Apprendi
prior conviction exception encompasses juvenile adjudications and they need not be charged or
proven to a jury before they can be used in calculating a defendant's criminal history score), and
Allen to support its finding that use of the juvenile adjudication did not violate
Apprendi. Swisher,
slip op. at 6-7. It also opined that "there is no indication the legislature intended K.S.A. 2006
Supp. 21-4704(j)(2) to have a different application than K.S.A. 21-4710(a), which explicitly
includes juvenile adjudications as a type of prior conviction for criminal history purposes."
Swisher, slip op. at 6-7. The Boyer panel rejected this conclusion,
stating:

"We believe that Swisher's assumption that the prior convictions
defined in K.S.A.
21-4710(a) apply in all contexts is misplaced. K.S.A. 21-4710(a) has no explicit application to
anything but figuring the criminal-history score, a separate endeavor from classifying a person as
a persistent sex offender. In K.S.A. 21-4710(a), the legislature certainly has carefully defined
which past convictions and adjudications count in calculating a criminal-history score. But the
past cases we have cited note how carefully the statutes for criminal sentencing have been
constructed. For the reasons we have explained, we cannot add language to K.S.A. 21-4704(j)
that is not present there--and the statute simply makes no reference at all to juvenile
adjudications or, for that matter, to K.S.A. 21-4710(a)." 40 Kan. App. 2d at 324.

We find the reasoning of the Boyer panel thorough and persuasive. The
State's argument
that there is no indication the legislature did not intend for juvenile adjudications to be the basis of
a persistent sex offender determination ignores the plain language of K.S.A. 21-4704(j). The
legislature did not include juvenile adjudications in the language of the statute as it did in K.S.A.
21-4710(a). On the contrary, there is no indication that the legislature intended the list of prior
convictions set out in K.S.A. 21-4710(a) to apply to anything other than the determination of
criminal history for the sentencing guidelines grid purposes. K.S.A. 21-4710(a) plainly states that
"[c]riminal history categories contained in the sentencing guidelines grid for nondrug crimes and
the sentencing guidelines grid for drug crimes are based on the following types of prior
convictions." It does not say that the following types of prior convictions should be used for all
purposes or even for the purpose of determining persistent sex offender status. Rather, the
reference is evidently limited to determining criminal history categories for the sentencing
guidelines grids.

The State's reliance on State v. Armstrong, 276 Kan. 819, 80 P.3d 378
(2003), is
misplaced. The statute at issue in Armstrong was the subject of a constitutional attack
by the
defendant, and the court found there was a constitutional threat of arbitrary or discriminatory
enforcement presented by reading the statute literally. In keeping with the established duty of the
court to uphold the constitutionality of a statute if at all possible, the court did so. 276 Kan. 819,
Syl. ¶¶ 2, 6. This case does not present a constitutional attack on K.S.A. 21-4704.

The State also points to the Kansas Offender Registration Act, which includes in the
definition of "sex offender" any person who "is adjudicated as a juvenile offender for an act which
if committed by an adult would constitute the commission of a sexually violent crime," K.S.A.
22-4902(b), and argues that it would be illogical to conclude that the legislature intended for a
defendant to be treated with greater leniency when he reoffended simply because his prior offense
was committed when he was a juvenile. While this argument has some appeal, it ignores the fact
that the legislature has specifically included juvenile adjudications in K.S.A. 22-4902(b), proving
yet again that when it wants to include juvenile adjudications as a consideration, it is perfectly
capable of doing so explicitly.

Finally, the State argues that State v. Allen, 283 Kan. 372, is an implicit
affirmation that
the inclusion of juvenile adjudications in persistent sex offender determinations is appropriate.
This argument was addressed in the Court of Appeal's opinion. The Allen court did
not consider
the issue. See Boyer, 40 Kan. App. 2d at 323.

This court and the Court of Appeals have repeatedly held that the legislature not only
knows how to distinguish between juvenile adjudications and adult convictions, but it has done so
in several statutes. To hold that a reference to convictions in K.S.A. 21-4704(j) now also
encompasses juvenile adjudications would throw doubt on the application of other current
statutes. Presumably, the legislature has written the current statutes with the court's prior
interpretations in mind. See In re Adoption of G.L.V., 286 Kan. 1034, 1041-42, 190
P.3d 245
(2008). It is the prerogative of the legislature, not the court, to amend those statutes. We affirm
the decision of the Court of Appeals in this case, holding that juvenile adjudications are not to be
considered in the determination of persistent sex offender status under K.S.A. 21-4704(j).

Boyer's prior juvenile convictions were not included in the complaint, and the State was
not required to prove their existence beyond a reasonable doubt. Boyer maintains that this violates
his rights under Apprendi but concedes that this issue has previously been decided
adversely to
him by this court. Hitt, 273 Kan. 224, Syl. ¶¶ 1-2; State v.
Ivory, 273 Kan. 44, 46-48, 41 P.3d 781
(2002); see State v. Moore, 274 Kan. 639, 55 P.3d 903 (2002). Hitt
controls this issue, and there
is no need for further elaboration.

The decision of the Court of Appeals vacating Boyer's sentences is affirmed. The district
court is reversed, Boyer's sentences are vacated, and the case is remanded to the district court for
resentencing.